Key Takeaways

• Following the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court, class action defendants have arguments that there is no personal jurisdiction over non-resident class members in putative class actions brought outside the defendant’s home state.

• Two federal appellate courts recently addressed this issue—the D.C. Circuit deferred the issue in a divided decision, and the Seventh Circuit ruled that Bristol-Myers does not apply to class actions.

• Defendants should monitor this issue as it continues to develop in the trial and appellate courts, including possible petitions for certiorari to the U.S. Supreme Court.

Three years ago, in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), the Supreme Court ruled that, without an adequate connection to the forum, due process prohibits personal jurisdiction over claims by non-resident plaintiffs against non-resident defendants in an aggregated mass action. In such circumstances, specific jurisdiction is lacking because the non-resident plaintiffs’ claims do not arise out of the defendant’s contacts with the forum, and general jurisdiction is lacking because the defendant is not “at home” in the state.

Following Bristol-Myers, there has been considerable litigation over the application of its holding to class actions. In recent weeks, two appellate courts have issued opinions regarding this question. The Seventh Circuit held that Bristol-Myers does not apply to nationwide class certification challenges to personal jurisdiction. The D.C. Circuit Court, in a divided decision, declined to adopt a rule and held that the issue is not ripe until after a class is certified. Judge Silberman dissented and would hold that Bristol-Myers applies to class actions. More decisions on this question are in the pipeline, as district courts have been divided on the issue.

Seventh Circuit Holds Bristol-Myers Does Not Apply to Class Actions in Mussat v. IQVIA, Inc.

In Mussat v. IQVIA, Inc., ___ F.3d ____, 2020 WL 1161166 (7th Cir. Mar. 11, 2020), recipients of unsolicited faxes had brought a putative class action against IQVIA in Illinois federal court under the Telephone Consumer Protection Act. IQVIA, which is not based in Illinois, moved to strike the class definition for lack of personal jurisdiction over non-Illinois members of the proposed nationwide class. The Northern District of Illinois held that it lacked personal jurisdiction over the non-resident class members, and the plaintiffs sought leave to appeal under Rule 23(f).

The Seventh Circuit granted review and reversed, holding that Bristol-Myers does not apply to nationwide class actions. The unanimous Seventh Circuit panel held that “the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute.” The Seventh Circuit held that to support certification of a nationwide class action, only the named representatives—here, Illinois residents—need be able to demonstrate personal jurisdiction over the defendants. Reasoning that to hold otherwise would bring about “a major change in the law of personal jurisdiction and class actions,” the court relied on the “general consensus” prior to Bristol-Myers “that due process principles did not prohibit a plaintiff from seeking to represent a nationwide class in federal court.” The court went on to explain that in specific jurisdiction-based class action cases before Bristol-Myers, jurisdiction was assessed only with respect to named plaintiffs, and the Supreme Court has entertained nationwide class actions reliant on specific jurisdiction.

The Seventh Circuit acknowledged that the issue at hand had “not been examined closely” by federal courts until Bristol-Myers sparked the debate. The Seventh Circuit distinguished class actions—where unnamed class members are absent parties and named plaintiffs represent the interest of all parties—from the coordinated mass action proceeding in Bristol-Myers—where all plaintiffs were named parties. The Seventh Circuit analogized its rule to other class certification questions, such as amount in controversy, diversity of citizenship, and venue, which are decided based on the named plaintiffs, not the unnamed class members. The court also stated that nothing in the class action rules “frowns on nationwide class actions, even in a forum where the defendant is not subject to general jurisdiction.” It therefore concluded that Bristol-Myers does not extend to nationwide class actions.

Divided D.C. Circuit Holds Personal Jurisdiction Question Regarding Putative Class Members Is Premature Prior to Class Certification in Molock v. Whole Foods Market Group

In Molock v. Whole Foods Market Group, Inc., ___ F.3d ____, 2020 WL 1146733 (D.C. Cir. Mar. 10, 2020), employees brought a putative nationwide class action against their employer, Whole Foods Market Group, a non-resident defendant. Prior to class certification, Whole Foods moved to dismiss nonresident putative class members on several grounds, including for lack of personal jurisdiction. The U.S. District Court for the District of Columbia denied Whole Foods’ motion to dismiss on the merits, and Whole Foods sought leave to appeal under 28 U.S.C. § 1292(b).

The D.C. Circuit granted review and affirmed on alternative grounds in a divided decision. The panel held that a motion to dismiss putative class members for lack of personal jurisdiction was premature, since those individuals were not parties to the action prior to class certification. The majority reasoned that it is a general principle of personal jurisdiction that a court has no power over a nonparty. The court compared how unnamed class members in certified class actions are treated as nonparties for class action jurisdictional questions, such as how nonparties are not considered for the complete diversity requirement. The majority went on to reason that putative class members are always treated as nonparties and become parties to an action and thus subject to dismissal only after class certification. The majority thus reasoned that the personal jurisdiction question was premature because the putative class members were not yet before the court.

Judge Silberman dissented from this holding. Initially, he stated that because the plaintiffs had not raised the question of prematurity in the district court, he would deem the issue forfeited. In addition, the dissent stated that the defendant’s motion below was a proper challenge to the ability of the named plaintiffs to bring claims on behalf of absent class members and therefore not premature. Judge Silberman explained that he would therefore reach the Bristol-Myers question, and would hold that Bristol-Myers applies to class actions, because “logic dictates that it does.” The dissent reasoned that the mass action in Bristol-Myers is a “species of joinder” akin to a class action, and that personal jurisdiction for each absent class member must still be analyzed on a claim by claim basis. The dissent further explained that the party status of absent class members is irrelevant to this inquiry because a defendant is entitled to due process with respect to all claims against it. Finally, the dissent acknowledged that class actions would face reasonable limitations as a result of the application of Bristol-Myers, as “procedural tools like class actions and mass actions are not an exception to ordinary principles of personal jurisdiction.”

Future Appellate Litigation on Personal Jurisdiction and Class Certification

In litigations outside of the Seventh and D.C. Circuits, Bristol-Myers may provide a basis to reject personal jurisdiction over putative nonresident class members. Several district courts have held that Bristol-Myers extends to class actions,¹ while others have held that Bristol-Myers does not apply to class actions.² Still others have declined to rule on the issue.³

Additional appellate decisions on this question are expected, and the Supreme Court is likely to address the issue eventually. District courts within the Eighth and Ninth Circuits have taken opposing views,⁴ and the Ninth Circuit may be the next to confront this issue. The Ninth Circuit has agreed to hear an interlocutory class certification appeal in Moser v. Health Insurance Innovations, where a U.S. district court in the Southern District of California found that defendants had waived their jurisdictional challenge under Bristol-Myers.⁵ Class action defendants and practitioners should be sure to consider and preserve this potential defense in part because they may wish to file a petition for certiorari, and because the Supreme Court will likely take up this issue. Practitioners and defendants should continue to monitor developments on these important questions in the coming months.

Footnotes

1) See, e.g., In re Dicamba Herbicides Litig., 359 F. Supp. 3d 711, 723-24 (E.D. Mo. 2019); Zuehlsdorf v. FCA US LLC, 2019 WL 2098352, at *15 (C.D. Cal. Apr. 30, 2019); Wenokur v. AXA Equitable Life Ins. Co., 2017 WL 4357916, at *4, fn. 4 (D. Ariz. Oct. 2, 2017).

2) See, e.g., Brotz v. Simm Assocs., Inc., 2018 WL 4963692, at *2-3 (M.D. Fla. Oct. 15, 2018); Morgan v. U.S. Xpress, Inc., 2018 WL 3580775, at *5 (W.D. Va. July 25, 2018); In re Chinese-Manufactured Drywall Prod. Liab. Litig., 2017 WL 5971622, at *16 (E.D. La. Nov. 30, 2017); Day v. Air Methods Corp., 2017 WL 4781863, at *2 (E.D. Ky. Oct. 23, 2017).

3) See, e.g., Montoya v. CRST Expedited, Inc., 2019 WL 4230892 (D. Mass. Sept. 6, 2019); Chernus v. Logitech, Inc., 2018 WL 1981481 (D.N.J. April 27, 2018); Webb v. Dr. Pepper Snapple Grp., 2018 WL 1990509 (W.D. Mo. Apr. 26, 2018).

4) 9th Circuit: Compare Zuehlsdorf v. FCA US LLC, 2019 WL 2098352, at *15 (C.D. Cal. Apr. 30, 2019) (jurisdiction prohibited); Wenokur v. AXA Equitable Life Ins. Co., 2017 WL 4357916, at *4, fn. 4 (D. Ariz. Oct. 2, 2017) (jurisdiction prohibited), with Pascal v. Concentra, Inc., 2019 WL 3934936, at *5-6 (N.D. Cal. Aug. 20, 2019) (jurisdiction permitted); Fabricant v. Fast Advance Funding, LLC, 2018 WL 6920667, at *5 (C.D. Cal. Apr. 26, 2018) (jurisdiction permitted); Feller v. Transamerica Life Ins. Co., 2017 WL 6496803, at *17 (C.D. Cal. Dec. 11, 2017) (jurisdiction permitted); Fitzhenry-Russell v. Dr. Pepper Snapple Grp., 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017) (jurisdiction permitted).

8th Circuit: Compare In re Dicamba Herbicides Litigation, 359 F. Supp. 3d 711, 723-24 (E.D. Mo. 2019) (jurisdiction prohibited), with Moore v. Compass Grp. USA, 2019 WL 4723077, at *9 (E.D. Mo. Sept. 26, 2019) (jurisdiction permitted); Swinter Grp. v. Service of Process Agents, Inc., 2019 WL 266299, at *2 (E.D. Mo. Jan 18, 2019) (jurisdiction permitted); Harrison v. Gen. Motors Co., 2018 WL 6706697, at *7 (W.D. Mo. Dec. 20, 2018) (jurisdiction permitted); Knotts v. Nissan N. Am., Inc., 346 F. Supp. 3d 1310, 1332 (D. Minn. 2018) (jurisdiction permitted).

5) 2019 WL 3719889 (S.D. Cal. Aug. 7, 2019); see Moser v. Health Ins. Innovations, No. 19-56224 (9th Circuit), Docket.